Can a Default Judgment be Set Aside by Consent?

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Default Judgment Consent

If you’ve received a county court default judgment, you’ll probably want to have it set aside as quickly as possible.

This often involves an application to the court followed by a court hearing. The judge will then need to exercise some discretion in deciding whether to set it aside or not. This leads to a degree of uncertainty.

But what if the claimant is happy for it to be set aside and they’re not intending to resist the application? Is that enough for it to be set aside?

Here are a few things to consider.

1. What is the claimant’s incentive to agreeing to have the judgment set aside?

Usually, the only thing the claimant wants is their money as quickly as possible!

They don’t want to ruin your credit record. They don’t want to stop you obtaining a mortgage or any of the other negative consequences of having a judgment against you. They just want their money and preferably without having to take enforcement action.

So, you may be able to strike a deal. You pay them the money and they agree to having the judgment set aside.

This approach is likely to be appropriate if you admit the amount claimed.

If you have already paid the amount of the judgment, there is very little incentive for the claimant to co-operate with you. However, the claimant will often consent anyway as a gesture of good will.

When we are helping a client with setting aside a judgment and the claimant consents, we draft the consent order and simply ask the claimant to sign on the dotted line. The less work there is for the claimant, the more likely they are to be helpful.

2. What if you dispute the claim?

If you dispute the claim, you may not feel it’s fair to pay it just to clear your credit record.

However, you may be able to persuade the claimant to agree to the removal of the judgment anyway, provided that their claim can then continue to a full trial.

This may work if it seems very likely that the judge will grant your application to set judgment aside. The claimant may feel that it’s not worth incurring the legal costs involved in turning up at court and resisting it.

3. Will the judgment definitely be set aside if the claimant consents to it?

Consent from the claimant is very likely to lead to the judgment being set aside but it’s not guaranteed. Consent on its own is not enough. It is always at the discretion of the court.

Our experience is that judges are generally happy to endorse an agreement made between the parties to litigation. Occasionally, they ask for more information before they make a decision but this is usually to make sure that there are good reasons for removing the judgment.

4. What is the procedure for notifying the court of the agreement?

Once an agreement has been reached between the claimant and defendant, you will need a document known as a consent order. This is a formal document setting out the agreed terms on which the dispute is being settled.

Usually it states that:

  • the parties have reached an agreement
  • the judgment is to be set aside
  • the original claim is withdrawn

The consent order is then sent to the court. If the judgment amount has been paid, the document will need to be seen by a judge. If not, it can be endorsed by one of the court administrative staff provided that both parties are legally represented.

If either party is not legally represented, the consent order can only be approved by a judge, who may still want to meet with the parties to make sure they’ve properly understood the effect of the agreement.

Once it has been properly approved, it has the full effect of a court order, just as though it was a decision made by a judge.

5. When is the best time for agreeing the consent order?

The sooner you can obtain the claimant’s consent, the better.

If you can persuade the claimant to sign the consent order without you having to start the application process, this makes the process much quicker and cheaper.

However, be careful not to wait too long. If the claimant doesn’t consent or simply ignores you, you will have to make an application to the court for judgment to be set aside. One of the factors a court will consider is whether you have made the application promptly.

Often, the claimant won’t consent to the judgment being set aside until you’ve issued a proper application. When the application arrives on their desk, it focuses their minds and they decide to settle the matter quickly rather than deal with the court.

6. What if consent can’t be obtained?

Sometimes, the claimant simply ignores the application completely. They don’t consent but they don’t object either. Unfortunately, this means that you will probably need to attend a court hearing, even if it’s likely to be over very quickly.